Exhibit 3.7
THIS INSTRUMENT WAS PREPARED BY, AND WHEN RECORDED SHOULD BE RETURNED TO: John
Francis Hilson, Esq., Brobeck, Phleger & Harrison LLP, 550 South Hope Street,
Suite 2300, Los Angeles, California 90071 (213) 489-4060
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John Francis Hilson CSBA# 76784 SPACE ABOVE THIS LINE
FOR RECORDER
MORTGAGE,
LEASEHOLD MORTGAGE,
ASSIGNMENT OF RENTS,
SECURITY AGREEMENT
AND
FIXTURE FINANCING STATEMENT
FROM
PENINSULA GAMING COMPANY, LLC
TO
FOOTHILL CAPITAL CORPORATION, AS LENDER
NOTICE: This Mortgage secures credit in the maximum amount of $10,000,000. Loans
and advances up to this amount, together with interest, are senior to
indebtedness to other creditors under subordinated or subsequently recorded and
filed mortgages and liens.
This Mortgage contains an after-acquired property clause.
This Mortgage (the "Shore Mortgage") is made as of February 23, 2001, by
Peninsula Gaming Company, LLC, a Delaware limited liability company (the
"Company"), in favor of Foothill Capital Corporation, a California corporation,
as lender (the "Lender") under that certain Loan and Security Agreement dated as
of February 23, 2001 (the "Loan Agreement") between the Company and Lender.
RECITALS
WHEREAS, the Company is the sole owner of (i) a fee simple interest
(the "Fee Simple Interest") for certain premises located in Dubuque County, Iowa
and more particularly described on Exhibit A attached hereto, and (ii) leasehold
interests (the "Leasehold Interests") created under leases with respect to
certain premises located in Dubuque County, Iowa and more particularly described
on Exhibit B attached hereto (collectively, the "Leases") (such Leasehold
Interests and Fee Simple Interest are hereinafter referred to as the "Real
Property"); and
WHEREAS, pursuant to the Loan Agreement, Lender has agreed to loan the
Company the maximum principal amount of $10,000,000, subject to the terms and
conditions in the Loan Agreement and maturing on February 23, 2005. The Loan
Agreement provides that to secure performance by the Company of its obligations
under the Loan Agreement, the Company will execute and deliver this Shore
Mortgage to Lender. The Loan Agreement, this Shore Mortgage, the other Loan
Documents (as defined in the Loan Agreement) and any other document referred to
in or made with reference to the Loan Documents are hereby incorporated by
reference, and are sometimes collectively referred to as "Transaction
Documents."
GRANTING CLAUSES
NOW, THEREFORE, in consideration of ten dollars and other good and valuable
consideration, the receipt of and sufficiency of which are hereby acknowledged,
and to secure
(i) the payment when due of indebtedness evidenced by the Loan
Agreement in the maximum principal sum of $10,000,000 payable to the order of
Lender, bearing interest as set forth in the Loan Agreement and maturing on
February 23, 2005, such date being the "Maturity Date," including, without
limitation, all accrued and unpaid interest thereon, and premiums and penalties,
if any, thereon, including late payment charges and Additional Interest (as
defined in Section 5.2 hereof),
(ii) all other sums that may or shall become due hereunder, in
connection with the Loan Agreement or under the other Transaction Documents,
including the costs and expenses of enforcing any provision of any of the
foregoing documents,
(iii) the reimbursement to Lender of all monies which may be advanced
as herein provided and of any and all costs and expenses (including reasonable
attorneys' fees and expenses) incurred or paid on account of any litigation at
law or in equity that may arise in respect of this Shore Mortgage or the
obligations secured hereby or the lands and premises and other property herein
mentioned or in obtaining possession of said lands and premises and other
property after any sale that may be made as hereinafter provided,
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(iv) the payment by the Company to Lender of all sums, if any, as may
be duly expended or advanced by Lender in the performance of any obligation of
the Company as provided hereunder,
(v) the payment of any and all other indebtedness that this Shore
Mortgage by its terms secures and
(vi) the performance and observance of the covenants, agreements and
obligations of the Company contained herein and in the other Transaction
Documents
(all obligations and sums included in the foregoing clauses (i), (ii), (iii),
(iv), (v) and (vi) being hereinafter collectively referred to as the "Secured
Obligations"), and in order to charge with such performance and with such
payments said lands and premises and other property hereinafter described and
the rents, revenues, issues, income and profits thereof, the Company does hereby
mortgage, affect, hypothecate, to inure to the use and benefit of Lender, and
its successors and assigns, all right, title and interest of the Company now or
hereafter owned or leased, in, to or under, or derived from each and all of the
following properties, estates, rights, titles and interests (collectively, the
"Mortgaged Property"):
(a) the Real Property and all tenements, hereditaments, appurtenances,
estates and rights in and to any of the Real Property and all component
parts of the Real Property, including without limitation all of the
Company's right, title and interest as tenant under the Leases;
(b) all buildings, improvements and other structures now or hereafter
located on any of the Real Property (the "Improvements");
(c) all of the Company's right, title and interest in and to all
servitudes, easements, rights-of-way, gores of land, streets, ways, alleys,
passages, sewer rights, waters, water courses, water rights and powers, and
all estates, rights, title, interests, privileges, liberties,
prescriptions, advantages and appurtenances of any nature whatsoever, in
any way belonging, relating or pertaining to any of the Real Property or
the Improvements;
(d) all of the Company's right, title and interest in and to any right
to purchase, or to use and occupy, any land adjacent to any of the Real
Property and any land lying in the bed of any street, road or avenue,
opened or proposed, in front of or adjoining any of the Real Property;
(e) all of the Company's right, title and interest, to all machinery,
apparatus, equipment, fittings, fixtures and other property of every kind
and nature whatsoever now or hereafter located upon any of the Real
Property or the Improvements, and all component parts of any building or
other construction located on any of the Real Property or appurtenances
thereto, and used in connection with the operation and occupancy of any of
the Real Property or the Improvements, and all building equipment, material
and supplies of any nature
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whatsoever now or hereafter located in or upon any of the Real Property or
the Improvements, including, without limitation, all metals, lumber and
lumber products, bricks, stones, building blocks, sand, cement, roofing
materials, paint, doors, windows, hardware, wires, wiring and other
building materials and any building equipment, materials and supplies
obtained for use in connection with any of the Real Property or the
Improvements and all additions, replacements, modifications and alterations
of any of the foregoing, including, but without limiting the generality of
the foregoing, all heating, lighting incinerating and power equipment,
engines, pipes, tanks, motors, conduits, switchboards, plumbing, lifting,
cleaning, fire prevention, fire extinguishing, refrigerating, ventilating
and communications apparatus, air cooling and air conditioning apparatus,
elevators, ducts and compressors and all other equipment and fixtures
(collectively, the "Fixtures"). The Company acknowledges that all Fixtures
are part and parcel of the real estate and appropriated to the use of the
real estate and, whether or not affixed or annexed to the Improvements,
shall for the purpose of this Shore Mortgage be deemed conclusively to be
real estate and mortgaged hereby;
(f) all of the Company's right, title and interest to all plans and
specifications for the Real Property and the Improvements, all contracts
with architects and engineers responsible for the design of the
Improvements, the preparation or evaluation of any of such plans and
specifications or the supervision of the construction of any of the
Improvements, all contracts to which the Company is now or hereafter a
party providing for the connection therewith or the furnishing or
installation of any Fixtures or other personal property in connection
therewith, all contracts to which the Company is now or hereafter a party
providing for the management of the construction of any of the
Improvements, all rights of the Company as a third party beneficiary under
all contracts and subcontracts pertaining to the Real Property or the
Improvements as to which the Company is not a party, all payment and
performance bonds relating to the Real Property or the Improvements and all
other contracts and agreements related to the design, management,
construction, equipping and development of the Real Property or the
Improvements (collectively, the "Construction Documents");
(g) all of the Company's right, title and interest to all awards or
payments, and any interest paid or payable with respect thereto, that may
be made with respect to all or any portion of the Real Property, the
Improvements or the Fixtures, whether from the exercise of right of
condemnation, eminent domain or similar proceedings (including any transfer
made in lieu of the exercise of said right), or from any taking for public
use, or for any other injury to or decrease in the value of all or any
portion of the Real Property, the Improvements or the Fixtures, or as a
result of the exercise by any governmental authority of any right or option
to purchase any of the Real Property, all of the foregoing to be held,
applied and paid in accordance with the provisions of this Shore Mortgage
(collectively, the "Eminent Domain Awards");
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(h) all of the Company's right, title and interest to all proceeds of,
and any unearned premiums on, any insurance policies covering all or any
portion of the Real Property, the Improvements or the Rents (as hereinafter
defined), including, without limitation, the right to receive and apply the
proceeds of any insurance, judgments, or settlements made in lieu thereof,
for damage to all or any portion of the Real Property or the Improvements
and any interest actually paid with respect thereto, all of the foregoing
to be held, applied and paid in accordance with the provisions of this
Shore Mortgage (collectively, the "Insurance Proceeds");
(i) all of the Company's right, title and interest as lessor or
landlord to all leases and other agreements affecting the use or occupancy
of any of the Real Property or the Improvements now in effect or hereafter
entered into (including, without limitation, subleases (including subleases
of the Leases, licenses, concessions, tenancies and other occupancy
agreements covering or encumbering all or any portion of the Real Property
or the Improvements), but excluding any licenses and permits to the extent
not assignable under applicable law, including without limitation, liquor
and gaming licenses, together with any modifications, extensions or
renewals of the same (collectively, excluding the Leases, the "Space
Leases") and the rents, revenues, issues, income, products and profits of
the Real Property and the Improvements, including, without limitation, any
security deposits or other funds deposited with the Company pursuant to the
Space Leases (collectively, the "Rents"), together with any guarantees of
the Space Leases or Rents delivered to the Company from time to time, and
any modifications, extensions and renewals of any such guarantees, together
with the right, but not the obligation, to exercise options, to give
consents and to collect, receive and receipt for the Rents and apply the
Rents to the payment of the Secured Obligations and to demand, sue for and
recover the Rents (when due and payable), subject to a license in favor of
the Company in respect thereof prior to the occurrence of an Event of
Default (as defined in Section 5.1 hereof); and
(j) any and all other, further or additional rights, title, estates
and interests of the Company in and to any of the Real Property or the
Improvements or the Fixtures, and all renewals, substitutions and
replacements of and all additions and appurtenances to any of the Real
Property or the Improvements or the Fixtures or constructed, assembled or
placed on any of the Real Property or the Improvements, and all conversions
of the assemblage, placement or conversion, as the case may be, and in each
such case without any further mortgage, conveyance, assignment or other act
by the Company, shall become subject to the lien of this Shore Mortgage as
fully and completely, and with the same effect, as though now owned by the
Company, the Company expressly agreeing that if the Company shall at any
time acquire any other right, title, estate or interest in and to any of
the Real Property, the Improvements or the Fixtures, the lien of this Shore
Mortgage shall automatically attach to and encumber such other right,
title, estate or interest as a first lien thereon.
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AND, as additional security, the Company hereby grants to Lender a
continuing security interest in (a) the Fixtures, (b) the Construction
Documents, (c) the Insurance Proceeds, (d) the Eminent Domain Awards, (e) the
Space Leases, (f) the Rents, (g) all proceeds of the foregoing and (h) all
proceeds of any of the Real Property and the Improvements (collectively, the
"Security Interests Property") and this Shore Mortgage shall be effective as a
security agreement pursuant to the Uniform Commercial Code as enacted and in
effect in the state in which any of the Real Property is located (the "Code").
HABENDUM
TO HAVE AND TO HOLD the Mortgaged Property, the rights and privileges
hereby conveyed or assigned, or intended so to be, unto Lender, its successors
and assigns, forever for the uses and purposes and subject to the terms and
conditions herein set forth.
SUBJECT, HOWEVER, to Permitted Liens (as defined in the Loan Agreement).
PROVIDED NEVERTHELESS, should the Company pay and perform all the Secured
Obligations in accordance with the Loan Agreement and the Security Documents,
then these presents will be of no further force and effect, and this Shore
Mortgage shall be satisfied by Lender, at the expense of the Company.
The Company FURTHER agrees as follows:
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ARTICLE I
COVENANTS
Section 1.1 Performance of Obligations. The Company shall pay and perform
the Secured Obligations. Time is of the essence hereof.
Section 1.2 Further Assurances. If Lender requests in its Permitted
Discretion, the Company shall sign and deliver and cause to be recorded as
Lender shall direct any further mortgages, instruments of further assurance,
certificates and other documents as Lender may consider reasonably necessary or
desirable in order to perform, perfect, continue, and preserve the obligations
of the Company under the Transaction Documents. The Company further agrees to
pay to Lender, upon demand, all costs and expenses incurred by Lender in
connection with the preparation, execution, recording, filing and refiling of
any such documents, including attorneys' fees that are reasonable and title
opinion or title insurance costs.
Section 1.3 Operation and Maintenance; Compliance with Laws. The Company
shall cause the Mortgaged Property to be maintained in good working order and
condition, ordinary wear and tear excepted, and the Company shall make all
necessary repairs, renewals, replacements, additions, betterments and
improvements thereto, as shall be reasonably necessary for the proper conduct of
the business of the Company. The Company shall comply or cause compliance with
all laws, ordinances and regulations of any governmental authority with
reference to the Mortgaged Property and the manner of using or operating the
same, including any Environmental Laws or Regulations and Accessibility
Regulations, as hereafter defined, and with any restrictive covenants affecting
the title to the Mortgaged Property, and with the terms of all insurance
policies relating to the Mortgaged Property, except where the non-compliance
with which, individually or in the aggregate, would not result in and reasonably
could not be expected to result in a Material Adverse Change (as defined in the
Loan Agreement).
Section 1.4 Payment of Utilities, Impositions, Liens. The Company shall pay
or cause to be paid when due all charges or fees for utilities and services
supplied to the Mortgaged Property. The Company, at least five (5) days before
any penalty attaches thereto, shall pay and discharge, or cause to be paid and
discharged, all taxes, assessments and governmental charges or levies
(collectively, "Impositions") imposed upon or against it, its income or profits,
the Mortgaged Property or rents therefrom, or upon or against the Secured
Obligations, or upon or against the interest of Lender in the Mortgaged Property
or the Secured Obligations, except Impositions measured by the income of Lender
or unless the subject of a Permitted Protest (as defined in the Loan Agreement).
The Company shall provide evidence of such payment at Lender's request. This
Shore Mortgage is and shall be maintained by the Company as a valid first
mortgage lien and first security interest in the Mortgaged Property, subject
only to the Permitted Liens (as defined in the Loan Agreement). Except as
otherwise provided in the Loan Agreement, the Company shall not, directly or
indirectly, create or suffer, or permit to be created or suffered, against the
Mortgaged Property or any part thereof, and the Company will promptly discharge
any Lien (as defined in the Loan Agreement) or other Imposition that may affect
the Mortgaged Property or any part thereof, or any interest therein, except the
Permitted Liens. If any Lien not permitted hereunder is filed, the Company will
cause the same to be discharged promptly by payment or bonding or otherwise to
the satisfaction of
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Lender and will exhibit to Lender evidence of payment, discharge, bonding or
other disposition satisfactory to Lender.
Section 1.5 Intentionally omitted.
Section 1.6 Insurance. The Company shall maintain insurance on the
Mortgaged Property as specified in Section 6.8 of the Loan Agreement. Such
insurance shall include, unless waived in writing by Lender, the following:
(a) All insurance required by the Loan Agreement and in addition, with
respect to the Real Property and the Improvements, as follows: (i) special
causes of loss insurance (formerly known as all-risk insurance), flood and
sprinkler leakage, if applicable, in an amount sufficient to prevent the
Company from being or becoming a co-insurer within the terms of the policy
or policies providing such insurance, and in any event for not less than
the full replacement value of the Improvements and the Fixtures, as
reasonably determined by Lender; (ii) business interruption insurance for
loss occasioned by the perils commonly insured in a special causes of loss
policy for a period ending no earlier than the Maturity Date and in an
aggregate amount not less than the real estate taxes, additional interest
and other assessments for the Real Property and the Improvements and all
other continuing expenses of the Mortgaged Property including, without
limitation, all payments required to be made by the Company under the
Leases; (iii) commercial general liability insurance, including blanket
contractual liability, completed operations and personal injury coverage,
with a combined single limit for any one occurrence of at least $1,000,000
and an aggregate limit of at least $2,000,000; (iv) worker's compensation
and employer's liability insurance, subject to statutory limits or better,
in respect of any work or other operations on, about or in connection with
the Real Property and the Improvements; and (v) such other insurance with
respect to the Real Property and the Improvements in such amounts as
Lender, from time to time, may reasonably request against such other
insurable hazards which are commonly insured against in respect of property
similar to the Real Property and the Improvements.
(b) The insurance maintained by the Company under clauses (i), (ii)
and, if appropriate, (v) of subparagraph (a) of this Paragraph shall bear a
standard noncontributory endorsement in favor of Lender. The insurance
maintained by the Company under clause (iii) and, if appropriate, (v) above
shall name Lender as an additional insured. All insurance maintained by the
Company shall provide that no cancellation, material change or reduction in
the coverage or amounts thereof shall be effective until at least thirty
(30) days or, in the case of nonpayment of premiums, ten (10) days, after
written notice to Lender thereof.
(c) The Company shall furnish Lender with certificates evidencing all
such policies, endorsements and renewals and evidence of payment of
premiums therefor and, certified copies of all such policies, endorsements
and renewals certified by the insurance carrier. In this regard, the
Company further covenants
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and agrees that, in any suit or action for damages arising from the alleged
negligence of the Company in which action Lender is included or made a
defendant, the Company agrees to assume all of the burden, cost and expense
of the defense or settlement of such action or claim and will pay any
judgment which may be obtained against Lender.
(d) The Company shall not carry separate or additional insurance
concurrent in form or contributing, in the event of loss, with that
required hereunder unless endorsed in favor of Lender as loss payee or
additional insured, as applicable, and designating that such insurance
shall contain endorsements providing coverage secondary to the insurance
required to be carried hereunder. Nothing contained herein shall prohibit
the Company from holding or obtaining an owner's policy of title insurance
covering the Real Property.
(e) Each policy of insurance required by this Shore Mortgage
(hereinafter collectively referred to as the "Policies") shall be carried
with a company which is licensed to do business in the state in which the
Real Property is located and shall be in such amounts and with such
insurance companies as are reasonably satisfactory to Lender. All policies
of insurance placed with a mutual company shall be nonassessable. All
policies of insurance at any time carried by the Company on the Mortgaged
Property (whether carried pursuant to the requirements of this Shore
Mortgage or otherwise) shall name Lender as loss payee for all payments
made by such insurance company. The Company shall pay the premiums for the
Policies as the same become due and payable. Not later than thirty (30)
days prior to the expiration date of each of the Policies, the Company will
deliver to Lender a renewal policy or policies (or binder(s)
evidencing-same) marked "premium paid" or accompanied by other evidence of
payment of premium satisfactory to Lender.
(f) In the event of any insured loss, the Company hereby authorizes
and directs any insurance company concerned to make payment of such loss
(with respect to all insurance policies other than liability insurance
policies) to Lender and Lender shall apply such proceeds in accordance with
Sections 6.8 (d) and (e) of the Loan Agreement. The Company, acting in its
reasonable judgment, shall make any necessary proof of loss and shall
adjust and compromise all claims under all policies and shall cause the
applicable insurance company to make payment thereof as herein provided
(provided, however, that Lender shall have the exclusive right to adjust
any losses payable under any such insurance policies as provided in Section
6.8 (d) of the Loan Agreement, without any liability to Borrower whatsoever
in respect of such adjustments); and the Company shall sign all receipts,
vouchers, releases and other instruments which may be reasonably necessary
or desirable in aid of such adjustment and payment. The Insurance Proceeds
paid to Lender shall be disposed of in accordance with Section 3.1 hereof.
In the event that any Insurance Proceeds are paid by check to the Company
or to the Company and Lender as joint payees, the Company agrees that it
shall endorse such check over to Lender. Such Insurance Proceeds shall be
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disposed in accordance with the provisions of Sections 6.8(d) and 6.8(e) of
the Loan Agreement.
(g) In the event that the Company fails to keep the Real Property and
the Improvements insured in compliance with this Section, Lender may, but
shall not be obligated to, obtain insurance and pay the premiums therefor,
and the Company shall, on demand, reimburse Lender for all sums advanced
and expenses incurred in connection therewith. Such sums and expenses,
together with interest thereon at the Additional Interest Rate, shall be
deemed part of the Secured Obligations and secured by the lien of this
Shore Mortgage.
(h) Subject to the provisions of Section 3.1 hereof, nothing contained
in this Section or elsewhere in this Shore Mortgage shall relieve the
Company of its duty to maintain, repair, replace or restore the
Improvements or the Fixtures or rebuild the Improvements, from time to
time, in accordance with the applicable provisions of the Transaction
Documents, and nothing in this Section or elsewhere in this Shore Mortgage
shall relieve the Company of its duty to pay the Secured Obligations, which
shall be absolute, regardless of the occurrence of damage to or destruction
of or condemnation of all or any portion of the Mortgaged Property.
Section 1.7 Books and Records; Financial Information. The Company shall (i)
keep complete and accurate books and records with respect to the Mortgaged
Property; (ii) permit Lender to inspect such books and records during normal
business hours and make copies thereof at Lender's expense; and (iii) provide
Lender such information as is required by Section 6.3 of the Loan Agreement.
Section 1.8 Mortgage, Sale, Lease of the Mortgaged Property.
(a) The Company will not, now or in the future, mortgage, pledge or
encumber or place any Lien or encumbrance (or permit the same to exist) on
the Mortgaged Property, or any part thereof, without the prior written
consent of Lender, except for Permitted Liens (including Liens that are
replacements of Permitted Liens to the extent that the original
Indebtedness (as defined in the Loan Agreement) is refinanced, renewed, or
extended under clause (i) of the definition of "Permitted Indebtedness" set
forth in the Loan Agreement and so long as the replacement Liens only
encumber those assets that secured the refinanced, renewed or extended
Indebtedness.
(b) The Company shall not sell, convey, transfer or otherwise alienate
in any manner, whether directly or indirectly, any right, title or interest
in the Mortgaged Property, or any part thereof, without obtaining in each
such instance the prior written consent of Lender, such consent not to be
unreasonably withheld, except as expressly permitted under the Loan
Agreement.
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(c) Except as otherwise expressly permitted under the Transaction
Documents or as otherwise expressly permitted hereunder, the Company shall
not, without Lender's prior consent, which consent will not be unreasonably
withheld, enter into any agreement with or conveyance to any other person
or entity permitting the use of any excess development rights that might
otherwise be used by the Company in expanding, altering, reconstructing,
replacing or otherwise improving the Improvements or making any other
improvements on the Mortgaged Property, or otherwise permit or suffer any
change of the zoning of the Mortgaged Property or the use that may be made
thereof.
Section 1.9 Environmental - ADA. The Company agrees:
(a) Except for substances normally used for maintenance or operation
of the Mortgaged Property which are used, stored and disposed of in
accordance with all applicable Environmental Regulations, the Company shall
not, nor shall it permit others to, place, store, locate, generate,
produce, create, process, treat, handle, transport, incorporate, discharge,
emit, spill, release, deposit or dispose of any Hazardous Substance in,
upon, under, over or from the Mortgaged Property. The Company shall cause
all Hazardous Substances found on or under the Mortgaged Property, which
are not permitted under the foregoing sentence, and which exist in
quantities which violate applicable Environmental Laws or Regulations, to
be properly removed therefrom and properly disposed of at the Company's
cost and expense. The Company shall not install or permit to be installed
any underground storage tank on or under the Mortgaged Property. If Lender
shall reasonably request, the Company shall at its cost obtain and deliver
to Lender an environmental review, audit, assessment and/or report relating
to the Mortgaged Property or shall have any previously delivered materials
updated and/or amplified, by an engineer or scientist acceptable to Lender;
provided, however, that so long as no Default or Event of Default has
occurred and is continuing, Borrower shall not be required to obtain and
deliver to Lender such environmental review, audit, assessment and/or
report relating to the Mortgaged Property or have any previously delivered
materials updated and/or amplified more frequently than once per calendar
year.
(b) the Company shall comply in all material respects with all
Accessibility Regulations which are applicable to the Mortgaged Property.
If Lender shall reasonably request, the Company shall at its cost obtain
and deliver to Lender an Accessibility Regulation compliance report
relating to the Mortgaged Property or shall have any previously delivered
materials updated and/or amplified, by a qualified consultant acceptable to
Lender; provided, however, that so long as no Default or Event of Default
has occurred and is continuing, Borrower shall not be required to obtain
and deliver to Lender such Accessibility Regulation compliance report
relating to the Mortgaged Property or have any previously delivered
materials updated and/or amplified more frequently than once per calendar
year.
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(c) the Company shall, promptly within 10 days after obtaining actual
knowledge thereof, give notice to Lender of: (i) any activity in violation
of any applicable Environmental Laws or Regulations relating to the
Mortgaged Property, (ii) any governmental or regulatory actions instituted
or threatened under any Environmental Laws or Regulations or any
Accessibility Regulations affecting the Mortgaged Property, (iii) all
claims made or threatened by any third party against the Mortgaged Property
relating to any Hazardous Substance or a violation of any Environmental
Laws or Regulations or any Accessibility Regulations, (iv) discovery by the
Company of any occurrence or condition on or under the Mortgaged Property
or on or under any real property adjoining or in the vicinity of the
Mortgaged Property which could subject the Company, Lender or the Mortgaged
Property to a claim under any Environmental Laws or Regulations or
Accessibility Regulations which reasonably could be expected to result in a
Material Adverse Change (as defined in the Loan Agreement). Any such notice
shall include copies of any written materials received by the Company.
(d) Any investigation, remedial or corrective action, taken with
respect to the Mortgaged Property shall be done under the supervision of a
qualified consultant, engineer or scientist acceptable to Lender who shall,
at the Company's cost and at the completion of such investigation or
action, provide a written report of such investigation or action to Lender.
(e) If the Mortgaged Property has, or is suspected to have, asbestos
or asbestos containing materials ("ACM") which, due to its condition,
location and/or planned building renovation or demolition, is recommended
to be abated by repair, encapsulation, removal or other action, the Company
shall promptly carry out the recommended abatement action. If the
recommended abatement includes removal of ACM, the Company shall cause the
same to be removed and disposed of offsite by a licensed and experienced
asbestos removal contractor, all in accordance with Environmental Laws or
Regulations. Upon completion of the recommended abatement action, the
Company shall deliver to Lender a certificate, signed by an officer of the
Company and the consultant overseeing the abatement action, certifying to
Lender that the work has been completed in material compliance with all
applicable laws, ordinances, codes and regulations (including without
limitation those regarding notification, removal and disposal) and that no
airborne fibers beyond permissible exposure limits remain on site. The
Company shall develop and implement an Operations and Maintenance Program
(as contemplated by Environmental Protection Agency guidance document
entitled "Managing Asbestos In Place: A Building Owner's Guide to
Operations and Maintenance Programs for Asbestos-Containing Materials") for
managing in place any ACM in the Mortgaged Property. The Company shall
deliver a complete copy of such Operations and Maintenance Program to
Lender and certify to Lender that such Program has been implemented.
(f) After the occurrence and during the continuance of an Event of
Default, or if at any time there is a reasonable basis to believe that a
violation of
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Environmental Laws or Regulations may have occurred on the Mortgaged
Property, Lender shall have the right, after ten (10) days' prior written
notice to the Company, to have an environmental review, audit, assessment,
testing program and/or report with respect to the Mortgaged Property
performed or prepared by an environmental engineering firm selected by
Lender. The Company shall reimburse Lender for the cost incurred for each
such action within ten (10) days following demand therefor by Lender. The
amount shall accrue interest at the Additional Interest Rate (as defined in
Section 5.2) from and including the date of disbursement by Lender through
the date of payment by the Company.
For purposes of this Shore Mortgage, the following definitions shall apply:
"Environmental Laws or Regulations" means and includes the Federal
Comprehensive Environmental Response, Compensation and Liability Act ("CERCLA"
or the Federal Superfund Act) as amended by the Superfund Amendments and
Reauthorization Act of 1986 ("SARA"), 42 U.S.C. ss. ss. 9601 et seq.; the
Federal Resource Conservation and Recovery Act of 1976 ("RCRA"), 42 U.S.C. ss.
ss. 6901 et seq.; Chapter 455B of the Iowa Code; the Clean Water Act, 33 U.S.C.
ss. ss. 1321 et seq.; the Toxic Substances Control Act, 15 U.S.C. ss. 2601 et
seq.; the Safe Drinking Water Act, 42 U.S.C. ss. 3803 et seq.; the Oil Pollution
Act of 1990, 33 U.S.C. ss. 2701 et seq.; the Emergency Planning and the
Community Right-to-Know Act of 1986, 42 U.S.C. ss. 11001 et seq.; the Hazardous
Material Transportation Act, 49 U.S.C. ss. 1801 et seq.; the Occupational Safety
and Health Act, 29 U.S.C. ss. 651 et seq. (to the extent it regulates
occupational exposure to Hazardous Substances); and the Clean Air Act, 42 U.S.C.
ss. ss. 7401 et seq., all as the same may be from time to time amended, and any
other federal, state, county, municipal, local or other statute, code, law,
ordinance, regulation, requirement or rule which may relate to or deal with
human health or the environment, including, without limitation, all regulations
promulgated by a regulatory body pursuant to any such statute, code, law or
ordinance.
"Hazardous Substances" means asbestos, asbestos containing materials, urea
formaldehyde, polychlorinated biphenyls, nuclear fuel or materials, chemical
waste, radioactive materials, explosives, known carcinogens, petroleum products
including but not limited to crude oil or any fraction thereof, natural gas,
natural gas liquids, gasoline or synthetic gas, and any other waste, material,
substance, pollutant or contaminant which would subject the owner of the
Mortgaged Property to any damages, penalties, liabilities, or obligations under
any applicable Environmental Laws or Regulations.
"Accessibility Regulations" means any law ordinance or regulation relating
to accessibility of facility or property for disabled, handicapped and/or
physically challenged persons, including, without limitation, the Americans With
Disabilities Act of 1991, as amended.
Section 1.10 The Leases. With respect to each Lease, the Company hereby
covenants and agrees that:
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(a) The Company will promptly pay when due and payable the rentals,
additional rents and other charges mentioned in and payable under the Lease
within the grace and cure periods provided in the Lease, unless such
payments are the subject of a Permitted Protest (as defined in the Loan
Agreement).
(b) The Company will promptly perform and observe all of the terms,
covenants and conditions required to be performed and observed by the
Company, as lessee under the Lease, within the grace and cure periods
provided in the Lease, and will do all things reasonably necessary to
preserve and to keep unimpaired its rights under the Lease. The Company
will enforce or cause to be enforced the obligations of the lessor under
the Lease, to the end that the Company may enjoy all of the material rights
granted to it as lessee under the Lease.
(c) The Company will promptly notify Lender of any material default by
the Company in the performance or observance of any of the terms, covenants
or conditions on the part of the Company to be performed or observed under
the Lease.
(d) The Company will (i) promptly notify Lender of the receipt by the
Company of any notice from the lessor under the Lease of a default by the
Company in the performance or observance of any of the terms, covenants or
conditions on the part of the Company to be performed or observed under the
Lease, (ii) promptly notify Lender of the receipt by the Company of any
notice from the lessor under the Lease to the Company of termination of the
Lease pursuant to the provisions thereof and (iii) promptly cause a copy of
each such notice received by the Company from the lessor under the Lease to
be delivered to Lender.
(e) Except as otherwise expressly permitted under the Transaction
Documents or as otherwise expressly permitted hereunder, the Company will
not, without the prior consent of Lender (i) terminate, cancel, modify,
supplement or surrender or suffer or permit any termination, modification
or surrender of the Lease, (ii) fail or refuse to take timely and
appropriate action to renew the Lease pursuant to the applicable provisions
thereof, (iii) consent or refuse to consent to any action taken or to be
taken by the lessor or anyone else under the Lease, the result of which
would materially diminish or impair the security of this Shore Mortgage (as
determined by Lender in its Permitted Discretion), (iv) further encumber
the Leasehold Interests, notwithstanding any such right given to the
Company under the Lease, or (v) subordinate or consent to the subordination
of the Lease to any mortgage on the lessor's interest in the premises
demised by the Lease.
(f) Supplementing the provisions of subparagraph (e) above, if the
Lease is rejected or disaffirmed by the lessor thereunder (or by any
receiver, trustee, custodian or other party who succeeds to the rights of
such lessor, such receiver, trustee, custodian or other party being
collectively, the "acting lessor")
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pursuant to any bankruptcy, insolvency, reorganization, moratorium or
similar law (any such law hereinafter collectively referred to as a
"Bankruptcy Law"), the Company covenants that it will not elect to treat
the Lease as terminated under 11 U.S.C. ss. 365(h) or any similar or
successor law or right, and hereby assigns to Lender the sole and exclusive
right to make or refrain from making any such election, and the Company
agrees that any such election, if made by the Company, shall be void and of
no force or effect.
(g) If the lessor or acting lessor under the Lease rejects or
disaffirms the Lease pursuant to any Bankruptcy Law and Lender elects to
have the Company remain in possession under any legal right the Company may
have to occupy the premises leased pursuant to the Lease, then (i) the
Company shall remain in such possession and shall perform all acts
necessary for the Company to retain its right to remain in such possession
for the unexpired term of the Lease (including all renewals thereof)
whether such acts are required under the then existing terms and provisions
of the Lease or otherwise, and (ii) all of the terms and provisions of this
Shore Mortgage and the lien created hereby shall remain in full force and
effect and shall be extended automatically to such possession, occupancy
and interest of the Company.
(h) The Company will from time to time, after demand of the Lender,
use reasonable efforts to obtain and deliver to Lender a written statement
from the lessor under the Lease, duly acknowledged, and certifying to
Lender, (i) that the Lease is then in full force and effect and has not
been modified (or, if modified, setting forth all modifications), (ii) the
date to which the rent, additional rent and other charges thereunder have
been paid, (iii) whether or not, to the best knowledge of lessor under the
Lease, the Company is in default under the Lease, and, if the Company is in
default, the specific nature of all such defaults and (iv) as to any other
matters reasonably requested by Lender and reasonably related to the Lease.
(i) For the period from and after the Closing Date up to the date that
is 30 days after the Closing Date, the Company shall exercise its
commercially reasonable efforts to obtain an original Nondisturbance and
Attornment Agreement from the City of Dubuque, Iowa, from the Dubuque
Racing Association, and from the holder of any mortgage encumbering the
real property affected by the Leasehold Interest, in a form previously
agreed to by Lender.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
The Company makes the following representations and warranties:
Section 2.1 Existence and Powers. The Company is a limited liability
company duly created and validly existing and in good standing under the laws of
the State of Delaware. The Company has the power to own its property and to
carry on its business and to execute and perform the Transaction Documents. The
Company has obtained all material licenses and permits necessary to conduct its
business in the manner presently conducted.
Section 2.2 Ownership, Liens, Compliance with Laws. The Company owns the
Mortgaged Property free from all Liens and encumbrances except for the Permitted
Liens and except for defects in title that do not interfere in any material
respect with its ability to conduct its business or to utilize the Mortgaged
Property for its intended purpose. All applicable zoning and environmental, land
use, subdivision, building, fire, safety or health laws, ordinances and
regulations affecting the Mortgaged Property permit the current use and
occupancy thereof, and the Company has obtained all necessary consents, permits
and licenses required for such use. The Company will comply with and satisfy all
applicable formalities and provisions of the laws and regulations of the United
States of America and the laws of the State of Iowa in order to perfect,
establish and maintain this Shore Mortgage, and any supplement or amendment
hereto.
Section 2.3 Authority, Consents. The execution, delivery and performance of
the Transaction Documents have been duly authorized by all necessary action of
the Company. Except for consents and approvals previously obtained, no consent
or approval of, or exemption by, any person or entity, governmental or private,
is required to authorize the execution, delivery and performance of the
Transaction Documents or the validity thereof.
Section 2.4 Binding Agreement. The Transaction Documents are the valid and
legally binding obligations of the Company enforceable against the Company in
accordance with their respective terms, except to the extent limited by
equitable principles or bankruptcy, insolvency or similar laws affecting the
rights of creditors generally.
Section 2.5 No Conflict, Default. The execution, delivery and performance
by the Company of the Transaction Documents will not violate or cause default
under or permit acceleration of any material agreement to which the Company is a
party or by which it or the Mortgaged Property is bound. To the Company's best
knowledge, it is not in default (beyond any applicable grace period) in the
performance of any agreement, order, writ, injunction, decree or demand to which
it is a party or by which it is bound.
Section 2.6 Litigation. Except as otherwise disclosed in the Loan
Agreement, there is no litigation, arbitration or other proceeding in process or
to the Company's best knowledge pending or threatened against the Mortgaged
Property or the Company except for (a) matters that are fully covered by
insurance (subject to customary deductibles), and (b) matters arising after the
date hereof that if decided adversely to the Company, reasonably could not be
expected to have a materially adverse effect on the ability of the Company to
fulfill its
15
obligations under the Transaction Documents or on the condition, financial or
otherwise, of the Company's business, properties or assets.
Section 2.7 Use. The Mortgaged Property is not homestead property nor is it
agricultural property in agricultural use.
Section 2.8 Utilities. The Mortgaged Property is serviced by all necessary
public utilities, and all such utilities are operational and have sufficient
capacity.
Section 2.9 Environmental. To the Company's best knowledge, except as set
forth in the Loan Agreement and except with respect to any other matters that
individually or in the aggregate could not reasonably be expected to result in a
Material Adverse Change (as defined in the Loan Agreement):
(a) There is not located on, in, about, or under the Mortgaged
Property any Hazardous Substances except for Hazardous Substances of the
type ordinarily used, stored, or manufactured in connection with the
ownership or operation of the Mortgaged Property as it is presently
operated and such existing Hazardous Substances have been used, stored and
manufactured in compliance with all Environmental Laws or Regulations.
(b) The Mortgaged Property is not presently used, and has not in the
past been used as a landfill, dump, disposal facility, gasoline station or
for the storage, generation, production, manufacture, processing,
treatment, disposal, handling, transportation, or deposit of any Hazardous
Substances, where such production, storage, generation, manufacturing,
processing, treatment, disposal, handling, transportation or deposit was in
violation, in any material respect, of applicable Environmental Law.
(c) There has not in the past been, and no present threat now exists
of, a spill, discharge, emission or release of a Hazardous Substance in,
upon, under, over or from the Mortgaged Property or from any other property
which would have an impact on the Mortgaged Property.
(d) There are no past or present investigations, administrative
proceedings, litigation, regulatory hearings or other action completed,
proposed, threatened or pending, alleging noncompliance with or violation
of any Environmental Laws or Regulations respecting the Mortgaged Property,
or relating to any required environmental permits covering the Mortgaged
Property.
(e) The Company has disclosed to Lender all reports and investigations
commissioned by the Company and relating to Hazardous Substances and the
Land and the Improvements.
(f) There are not now, nor have there ever been, any above ground or
underground storage tanks located in or under the Mortgaged Property. There
are no wells on or under the Mortgaged Property.
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Section 2.10 First Mortgage Lien. This Shore Mortgage constitutes a valid
mortgage and, upon proper recording hereof, will constitute a valid and
perfected first priority mortgage lien, and security interest in the Mortgaged
Property (subject only to the Permitted Liens and any mortgage filed pursuant to
the provisions of the Intercreditor Agreement), and there are no defenses or
offsets to the Company's obligations pursuant to this Shore Mortgage or the
other Transaction Documents, including without limitation, the Company's
applicable obligations to pay and perform the Secured Obligations.
Section 2.11 Tax Liens; Bankruptcy. There are no federal, state or local
tax claims or liens assessed or filed against the Company or the Mortgaged
Property for taxes which are due and payable, unsatisfied of record or docketed
in any court of the state in which the Real Property is located or in any other
court located in the United States, and no petition in bankruptcy has ever been
filed by the Company, or, to the Company's knowledge, against the Company, and
the Company has never made any assignment for the benefit of creditors or taken
advantage of any insolvency act or any act for the benefit of debtors.
Section 2.12 Damage; Eminent Domain Proceedings. The Mortgaged Property has
not been damaged or destroyed by fire or other casualty, and no condemnation or
eminent domain proceedings have been commenced and none are pending with respect
to the Mortgaged Property, and, to the Company's best knowledge, no such
condemnation or eminent domain proceedings are about to be commenced.
Section 2.13 Leases. The Leases material to the business of the Company are
now valid and subsisting leases and are in full force and effect in accordance
with the terms thereof and have not been modified, and all of the rental,
additional rental and other charges payable under the Leases prior to the
execution hereof have been paid, and all of the material terms, conditions and
agreements contained in the Leases have been performed by the Company, and no
material default exists under any of the Leases. This Shore Mortgage is lawfully
executed and delivered in conformity with the Leases and is and will be kept a
valid first priority lien on and collateral assignment of the interest of the
Company therein.
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ARTICLE III
CASUALTY-CONDEMNATION
Section 3.1 Damage or Destruction. During the period the indebtedness
remains outstanding, in the event that the Real Property, the Improvements, or
the Fixtures shall be damaged or destroyed in whole or in part, by fire or other
casualty covered by insurance, the Company shall give prompt written notice
thereof to Lender. At such time as such damage, destruction or casualty shall
occur, the Insurance Proceeds shall be payable to Lender and applied in
accordance with Sections 6.8(d) and 6.8(e) of the Loan Agreement. Upon the
occurrence of an Event of Default which has not been waived in writing by
Lender, Lender shall have the right to apply such Insurance Proceeds in
accordance with Section 2.4(b)(i) of the Loan Agreement.
Section 3.2 Condemnation.
(a) During the period the indebtedness remains outstanding, in the
event that the Mortgaged Property, or any part thereof, shall be taken in
condemnation proceedings or by exercise of the right of eminent domain, or
by conveyance in lieu of condemnation, or as a result of the exercise by
any governmental authority of any right or option to purchase (hereinafter
collectively called "Proceedings"), Lender shall have the right to
participate in any such Proceedings at the Company's expense, including
reasonable attorneys' fees and disbursements, and any Eminent Domain Awards
that may be made or any proceeds thereof shall be deposited with Lender and
held in trust by Lender and distributed in the manner herein set forth. The
parties agree to execute any and all further documents that may be required
in order to facilitate collection of any Eminent Domain Award and the
making of any such deposit.
(b) During the period the indebtedness remains outstanding, if there
occurs a Proceeding, any Eminent Domain Awards payable in connection
therewith shall be payable to Lender and applied in accordance with Section
6.8(d) of the Loan Agreement.
(c) Upon the occurrence of an Event of Default which has not been
waived in writing by Lender, Lender shall have the right to apply such
Eminent Domain Awards in accordance with Section 2.4(b)(i) of the Loan
Agreement.
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ARTICLE IV
LEASES AND RENTS
Section 4.1 Space Leases, Rents and Cash Collateral.
(a) As additional collateral security for payment of the Secured
Obligations, and as cumulative of any and all rights and remedies herein
provided, the Company hereby bargains, sells, transfers, assigns and sets
over to Lender, any and all Space Leases and Rents and any and all cash
collateral to be derived from the Mortgaged Property, or the use and
occupation thereof, or under any contract or bond relating to the
construction or reconstruction of the Mortgaged Property, including all
Rents, royalties, revenues rights, deposits (including security deposits)
and benefits accruing to the Company under all Space Leases, and the right
to receive the same and apply them against the Secured Obligations or
against the Company's other obligations hereunder or the Company's
obligations under the Transaction Documents, together with all Space
Leases, contracts, bonds, leases and other documents evidencing the same
now or hereafter in effect and all right of the Company thereunder. Nothing
contained in the preceding sentence shall be construed to bind Lender to
the performance of any of the provisions of any such Space Lease, contract,
bond, lease or other documents or otherwise impose any obligation upon
Lender, except that Lender shall be accountable for any money actually
received pursuant to such assignment to the extent of its disposition
thereof in a manner inconsistent with this Shore Mortgage or the
Transaction Documents. The Company shall deliver to Lender upon Lender's
request an executed counterpart of each such Space Lease, contract, bond or
other documents. The assignment of said Space Leases, Rents, income
profits, proceeds and cash collateral, and any of the aforesaid rights with
respect thereto and to the contracts, bonds, leases and other documents
evidencing the same, is intended to be and is an absolute present
assignment from the Company to Lender and not merely the passing of a
security interest.
(b) So long as there shall exist no Event of Default hereunder which
has not been waived in writing by Lender, the Company shall have the right
and license to exercise all rights, options and privileges extended to the
lessor under the terms of the Space Leases, including, without limitation,
the right to collect all Rents. The Company agrees to hold the same in
trust and to use the same, first, in payment of the Secured Obligations,
second, the Taxes and insurance premiums payable hereunder and all other
charges on or against the Mortgaged Property and, third, to the expenses of
the Company's business in or on the Mortgaged Property.
(c) In the event of any such Event of Default which has not been so
waived, the right and license set forth in subparagraph (b) of this Section
shall be automatically revoked, and, thereafter, Lender shall have the
right and authority to exercise any of the rights or remedies referred to
or set forth herein. In addition, upon such an Event of Default, the
Company shall promptly pay to Lender (a) all
19
rent prepayments and security or other deposits paid to the Company
pursuant to any Space Leases and (ii) all charges for services or
facilities or for escalations which were paid pursuant to any Space Leases
to the extent allocable to any period from and after such Event of Default
and any such sums received by Lender shall be applied by Lender in
accordance with Section 2.4(b)(i) of the Loan Agreement.
(d) If the Company is not required to surrender possession of the
Mortgaged Property hereunder in the event of any such Event of Default
which has not been so waived, the Company will pay monthly in advance to
Lender, or to any receiver appointed to collect same, the income, profits
or proceeds received by the Company under any of the Space Leases.
(e) The Company will upon Lender's request execute, acknowledge and
deliver to Lender, in form approved by Lender, one or more general or
specific assignments of the lessor's interest under any Space Lease (which
are consistent with the foregoing provisions). The Company will, on demand,
pay to Lender, or reimburse Lender for the payment of, all reasonable costs
or expenses incurred in connection with the preparation or recording of any
such assignment.
(f) The Company will (i) perform or cause to be performed the lessor's
obligations under any Space Lease, (ii) enforce the performance by the
lessee under its respective Space Lease of all of said lessee's material
obligations thereunder and (iii) give Lender prompt notice and a copy of
any notice of default, event of default, termination or cancellation sent
or received by the Company.
(g) Except to the extent expressly permitted herein or under the other
Transaction Documents, the Company will not, without Lender's written
consent, (i) assign, mortgage, pledge or otherwise transfer, dispose of or
encumber, whether by operation of law or otherwise, any Space Lease or the
Rents or other income thereunder or therefrom, (ii) accept or permit the
acceptance of a prepayment of any Rents for more than one month in advance
of the due dates therefor, (iii) amend, modify, or otherwise alter any
Space Lease, or (iv) cancel, terminate or accept a surrender of any Space
Lease. The Company will from time to time, promptly upon Lender's
reasonable request, prepare and deliver to Lender such information
concerning the Space Leases as Lender shall request.
20
ARTICLE V
DEFAULTS AND REMEDIES
Section 5.1 Events of Default. Each of the following shall constitute an
Event of Default hereunder:
(a) the occurrence of an "Event of Default" as defined in Article 8 of
the Loan Agreement; or
(b) the failure of the Company to observe and perform any covenant,
condition or agreement on its part to be observed or performed in this
Shore Mortgage (other than an occurrence which may sooner constitute an
"Event of Default" under the Loan Agreement) including, without limitation,
the covenants contained in Article I herein for a period of thirty (30)
days after written notice specifying such failure and requesting that it be
remedied, given to the Company by Lender, unless Lender agrees in writing
to an extension of such time prior to its expiration.
Section 5.2 Remedies. Upon the occurrence of an Event of Default, all
Secured Obligations, at the option of Lender, shall be accelerated and become
immediately due and payable upon notice to the Company. The outstanding
principal amount and the interest accrued thereon of the Secured Obligations
shall be due and payable without presentment, demand or further notice of any
kind, all of which are hereby expressly waived by the Company. The Company will
pay to Lender the entire Secured Obligations or portions thereof, as applicable,
and to the extent permitted by law, the premiums and penalties, if any, provided
in this Shore Mortgage and each other Transaction Document, as applicable, and
such payment shall be applied in accordance with Section 2.4 (b)(i) of the Loan
Agreement.
In the event of any Event of Default, whether or not an acceleration shall
occur, Lender shall have the right to proceed to protect and enforce its rights
by one or more of the following remedies:
(a) LENDER SHALL HAVE THE RIGHT TO BRING SUIT either for damages,
specific performance of any agreement contained in any Transaction
Document, or for the foreclosure of this Shore Mortgage, or for the
enforcement of any other appropriate legal or equitable remedy.
(b) LENDER SHALL HAVE THE RIGHT TO OBTAIN A RECEIVER at any time after
an Event of Default, whether or not an action for foreclosure has been
commenced. Any court having jurisdiction shall at the request of Lender
following an Event of Default appoint a receiver to take immediate
possession of the Mortgaged Property and to rent or operate the same as he
may deem best for the interest of all parties concerned, and such receiver
shall be liable to account to the Company only for the net profits, after
application of rents, issues and profits upon the costs and expenses of the
receivership and upon the Secured Obligations.
21
Lender shall have the right, at any time to advance money to the receiver
to pay any part or all of the items which the receiver should otherwise pay
if cash were available from the Mortgaged Property and sums so advanced,
with interest ("Additional Interest") at the per annum rate equal to the
Default Rate (the "Additional Interest Rate"), shall be secured hereby, or
if advanced during the period of redemption shall be a part of the sum
required to be paid to redeem from the sale.
(c) LENDER SHALL HAVE THE RIGHT TO COLLECT THE RENTS from the
Mortgaged Property and apply the same in the manner hereinbefore provided
with respect to a receiver. For that purpose, Lender may enter and take
possession of the Mortgaged Property and manage and operate the same and
take any action which, in Lender's judgment, is necessary or proper to
collect the Rents and to conserve the value of the Mortgaged Property.
Lender may also take possession of, and for these purposes use, any and all
of the Security Interests Property. The expense (including any receiver's
fees, attorneys' fees, costs and agent's compensation) incurred pursuant to
the powers herein contained shall be secured by this Shore Mortgage. Lender
shall not be liable to account to the Company for any action taken pursuant
hereto other than to account for any Rents actually received by Lender.
Enforcement hereof shall not cause Lender to be deemed a trustee in
possession unless Lender elects in writing to be a trustee in possession.
(d) LENDER SHALL HAVE THE RIGHT TO ENTER AND TAKE POSSESSION of the
Mortgaged Property and manage and operate the same in conformity with all
applicable laws and take any action which, in Lender's judgment, is
necessary or proper to conserve the value of the Mortgaged Property.
(e) LENDER SHALL HAVE ALL OF THE RIGHTS AND REMEDIES PROVIDED IN THE
IOWA UNIFORM COMMERCIAL CODE, Iowa Code Chapter 554, including the right to
proceed under the Iowa Uniform Commercial Code provisions governing default
as to any Security Interests Property separately from the real estate
included within the Mortgaged Property, or to proceed as to all of the
Mortgaged Property in accordance with its rights and remedies in respect of
said real estate. If Lender should elect to proceed separately as to such
Security Interests Property, the Company agrees to make such Security
Interests Property available to Lender at a place or places acceptable to
Lender, and if any notification of intended disposition of any of such
Security Interests Property is required by law, such notification shall be
deemed reasonably and properly given if given at least ten (10) days before
such disposition in the manner hereinafter provided.
(f) LENDER SHALL HAVE THE RIGHT TO FILE PROOF OF CLAIM and other
documents as may be necessary or advisable in order to have its claims
allowed in any receivership, insolvency, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceedings
affecting the
22
Company, its creditors or its property, for the entire amount due and
payable by the Company under the Secured Obligations, this Shore Mortgage
and any other instrument securing the Secured Obligations, at the date of
the institution of such proceedings, and for any additional amounts which
may become due and payable by the Company after such date.
Each remedy herein specifically given shall be in addition to every other right
now or hereafter given or existing at law or in equity, and each and every right
may be exercised from time to time and as often and in such order as may be
deemed expedient by Lender and the exercise or the beginning of the exercise of
one right shall not be deemed a waiver of the right to exercise at the same time
or thereafter any other right. Lender shall have all rights and remedies
available under the law in effect now and/or at the time such rights and
remedies are sought to be enforced, whether or not they are available under the
law in effect on the date hereof.
Section 5.3 Expenses of Exercising Rights, Powers and Remedies. The
reasonable expense (including any receiver's fees, attorneys' fees, appraisers'
fees, environmental engineers' and/or consultants' fees, costs incurred for
documentary and expert evidence, stenographers' charges, publication costs,
costs (which may be estimated as to items to be expended after entry of the
decree of foreclosure) of procuring all abstracts of title, continuations of
abstracts of title, title searches and examinations, title insurance policies
and commitments and extensions therefor, Torrens duplicate certificates of
title, UCC and chattel lien searches, and similar data and assurances with
respect to title as Lender may deem reasonably necessary either to prosecute any
foreclosure action or to evidence to bidders at any sale which may be had
pursuant to any foreclosure decree the true condition of the title to or the
value of the Mortgaged Property, and agent's compensation) incurred by Lender
after the occurrence of any Event of Default under this Shore Mortgage and/or in
pursuing the rights, powers and remedies contained in this Shore Mortgage shall
be immediately due and payable by the Company, with interest thereon at the
Additional Interest Rate, and shall be added to the indebtedness secured by this
Shore Mortgage.
Section 5.4 Restoration of Position. In case Lender shall have proceeded to
enforce any right under this Shore Mortgage by foreclosure, sale, entry or
otherwise, and such proceedings shall have been discontinued or abandoned for
any reason or shall have been determined adversely, then, and in every such
case, the Company and Lender shall be restored to their former positions and
rights hereunder with respect to the Mortgaged Property subject to the lien
hereof.
Section 5.5 Marshalling. The Company, for itself and on behalf of all
persons, parties and entities which may claim under the Company, hereby waives
all requirements of law relating to the marshalling of assets, if any, which
would be applicable in connection with the enforcement by Lender of its remedies
for an Event of Default hereunder, absent this waiver. Lender shall not be
required to sell or realize upon any portion of the Mortgaged Property before
selling or realizing upon any other portion thereof.
Section 5.6 Waivers. No waiver of any provision hereof shall be implied
from the conduct of the parties. Any such waiver must be in writing and must be
signed by the party
23
against which such waiver is sought to be enforced. The waiver or release of any
breach of the provisions set forth herein to be kept and performed shall not be
a waiver or release of any preceding or subsequent breach of the same or any
other provision. No receipt of partial payment after acceleration of any of the
Secured Obligations shall waive the acceleration. No payment by the Company or
receipt by Lender of a lesser amount than the full amount secured hereby shall
be deemed to be other than on account of the sums due and payable hereunder, nor
shall any endorsement or statement on any check or any letter accompanying any
check or payment be deemed an accord and satisfaction, and Lender may accept any
check or payment without prejudice to Lender's right to recover the balance of
such sums or to pursue any other remedy provided in this Shore Mortgage. The
consent by Lender to any matter or event requiring such consent shall not
constitute a waiver of the necessity for such consent to any subsequent matter
or event.
Section 5.7 Lender's Right to Cure Defaults. If the Company shall fail to
comply with any of the terms hereof with respect to the procuring of insurance,
the payment of taxes, assessments and other charges, the keeping of the
Mortgaged Property in repair, the payment and satisfaction of Liens and
encumbrances against the Mortgaged Property, the payment or performance of the
Leases, the payment of any other sum or deposit required under this Shore
Mortgage, or any other term herein contained, Lender may make advances or take
other actions to perform the same without releasing the Company from any Secured
Obligations and may enter upon the Mortgaged Property for any such purpose and
take all such action thereon as Lender or any of its duly appointed agents may
deem necessary or appropriate therefor. The Company agrees to repay upon demand
all sums so advanced and all sums expended by Lender in connection with such
performance, including without limitation reasonable attorneys' fees, with
Additional Interest at the Additional Interest Rate from the dates such advances
are made, and all sums so advanced and/or expenses incurred, with Additional
Interest at the Additional Interest Rate, shall be secured hereby as Secured
Obligations, but no such advance and/or incurring of expense by Lender, shall be
deemed to relieve the Company from any default hereunder, or to release the
Company from any Secured Obligations. Lender shall not be bound to inquire into
the validity of any Imposition or Lien which the Company fails to pay as and
when required by this Shore Mortgage and which the Company does not contest in
strict accordance with the terms of this Shore Mortgage and the other
Transaction Documents.
Section 5.8 Suits and Proceedings. Lender shall have the power and
authority, upon prior notice to the Company to institute and maintain any suits
and proceedings as Lender may deem advisable to (i) prevent any impairment of
the Mortgaged Property by any acts which may be unlawful or any violation of
this Shore Mortgage, (ii) preserve or protect its interest in the Mortgaged
Property, or (iii) restrain the enforcement of or compliance with any
legislation or other governmental enactment, rule or order that may be
unconstitutional or otherwise invalid, if, in the Permitted Discretion (as
defined in the Loan Agreement) of Lender, the enforcement of or compliance with
such enactment, rule or order might impair the security hereunder or be
prejudicial to Lender's interest.
Section 5.9 Waiver of Redemption Rights; Alternative Foreclosure
Procedures. It is agreed that if this Shore Mortgage covers any parcel of less
than ten (10) acres of land, and in the event of the foreclosure of this Shore
Mortgage and sale of the property by sheriff's sale in
24
such foreclosure proceedings, the time of one (1) year for redemption from said
sale provided by the statutes of the State of Iowa with respect to such parcel
shall be reduced to six (6) months provided Lender in such action files an
election to waive any deficiency judgment against the Company which may arise
out of the foreclosure proceedings; all to be consistent with the provisions of
Chapter 628 of the Iowa Code.
It is further agreed that the period of redemption after a foreclosure of
this Shore Mortgage shall be reduced to sixty (60) days if all of the three
following contingencies develop with respect to any parcel of real estate
included in the Mortgaged Property: (1) the real estate is less than ten (10)
acres in size; (2) the court finds affirmatively that the said real estate has
been abandoned by the owners and those persons personally liable under this
Shore Mortgage at the time of such foreclosure; and (3) Lender in such action
files an election to waive any deficiency judgment against the Company or its
successor in interest in such action. Entry of appearance by pleading or docket
entry by or on behalf of the Company shall create a presumption that the
property is not abandoned. Any such redemption period shall be consistent with
all of the provisions of Chapter 628 of the Code of Iowa.
This Section shall not be construed to limit or otherwise affect any other
redemption provisions contained in Chapter 628 of the Iowa Code. This Section
also shall not be construed to limit Lender's right to elect foreclosure without
redemption or to elect foreclosure by nonjudicial procedure as set forth in
Chapters 654 and 655A of the Iowa Code. The Company agrees that, in the event of
a foreclosure of the Mortgage, under any provision of Iowa law, Lender shall be
entitled to sole possession and use of the Mortgaged Property during any
redemption period.
Section 5.10 Application of Proceeds. The proceeds from the foreclosure,
sale or lease or any recovery pursuant to Iowa Code Chapter 554 or hereunder
shall be applied to the payment of the Secured Obligations in accordance with
the Loan Agreement if such Secured Obligations have been deemed due and payable
upon the Event of Default. Any surplus of the proceeds shall be paid to the
Company.
25
ARTICLE VI
MISCELLANEOUS
Section 6.1 Binding Effect; Survival; Number; Gender. This Shore Mortgage
shall be binding on and inure to the benefit of the parties hereto, their
successors and assigns. All representations and warranties contained herein or
otherwise heretofore made by the Company to Lender shall survive the execution,
delivery and foreclosure hereof. The singular of all terms used herein shall
include the plural, the plural shall include the singular, and the use of any
gender herein shall include all other genders, where the context so requires or
permits.
Section 6.2 Severability. The unenforceability or invalidity of any
provision of this Shore Mortgage as to any persons or circumstances shall not
render that provision unenforceable or invalid as to any other persons or
circumstances.
Section 6.3 Notices. All notices and demands required or permitted to be
given to or made upon any party hereto under any Transaction Document shall be
in writing and shall be personally delivered or sent by certified mail, postage
prepaid, return receipt requested or by a nationally recognized courier, or by
telecopier, and shall be deemed to be given for purposes of this Shore Mortgage
on the day that such writing is delivered or sent to the intended recipient
thereof in accordance with the provisions of this Section. Notices shall be
given to or made upon the respective parties hereto at their respective
addresses set forth below:
If to the Company:
Peninsula Gaming Company, LLC
3rd Street Ice Harbor
P.O. Box 1683
Dubuque, Iowa 52004-1683
Attention: James P. Rix
Telephone: (319) 583-7005
Telecopier: (319) 557-0549
If to the Lender:
Foothill Capital Corporation
2450 Colorado Avenue, Suite 3000 West
Los Angeles, California 90404
Attention: Business Finance Division Manager
Either party may change the address for notices by a notice given not less than
five (5) business days prior to the effective date of the change.
Section 6.4 Survival of Warranties, Etc. All agreements, representations
and warranties made herein shall survive the execution and delivery of this
Shore Mortgage.
Section 6.5 Applicable Law. The Company and Lender agree that the rights
and obligations under this Shore Mortgage regarding the creation, perfection and
enforcement of
26
the liens and security interests herein granted shall be governed
and construed and interpreted in accordance with the internal laws of the State
of Iowa. All other provisions of this Shore Mortgage shall be governed by the
laws of the State of California, without regard to principles of conflict of
laws. In the event that any provisions or clause of this Shore Mortgage conflict
with applicable laws, such conflict shall not affect other provisions of this
Shore Mortgage which can be given effect without the conflicting provision, and
to this end the provisions of this Shore Mortgage are declared to be severable.
Section 6.6 Waiver of Jury Trial. EACH OF THE COMPANY AND LENDER, BY ITS
ACCEPTANCE OF THIS SHORE MORTGAGE, IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS SHORE
MORTGAGE AND ANY OF THE OTHER SECURITY DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
Section 6.7 Effect. This Shore Mortgage is in addition to and not in
substitution for any other guaranties, covenants, obligations or other rights
now or hereafter held by Lender from any other person or entity in connection
with the Secured Obligations.
Section 6.8 Assignability. Lender shall have the right to assign this Shore
Mortgage, in whole or in part or sell participation interests herein, to any
person obtaining an interest in the Secured Obligations.
Section 6.9 Headings. Headings of the Sections of this Shore Mortgage are
inserted for convenience only and shall not be deemed to constitute a part
hereof.
Section 6.10 Security Interest.
(a) An express security interest is hereby granted to Lender in
respect to any part of the Mortgaged Property which under Iowa law might
now or hereafter be construed or considered as personal property or
fixtures, or otherwise be considered collateral subject to the Iowa Uniform
Commercial Code, including without limitation the collateral described in
granting clauses (e) hereof, and this Shore Mortgage shall constitute a
security agreement in respect thereto.
(b) Upon the occurrence of an Event of Default hereunder in addition
to the other rights and remedies available to it, Lender may exercise all
other rights and remedies with respect to such property that are available
to a secured party under the Iowa Uniform Commercial Code. The Company
agrees to pay any reasonable attorney fees and legal expenses incurred by
Lender in enforcing or protecting its rights under the security interest
created hereunder. In the event notice of intended disposition of such
property is required by law in any particular instance, the Company agrees
that notice given in the manner and place provided in Section 6.3 hereunder
and sent ten (10) days prior to a disposition of collateral is commercially
reasonable notification within the meaning of the Iowa Uniform Commercial
Code. Information concerning the security interests may be obtained
27
from the Secured Party (Lender) at the address set forth in Section 6.3
hereof and the mailing address of the Debtor (Company) is also set forth in
Section 6.3 hereof.
(c) The Company warrants and agrees that no financing statement or
security agreement covering any of the Mortgaged Property is or will be
placed on file in any public office or delivered to any secured party
except pursuant hereto, except for Permitted Encumbrances and Permitted
Liens.
Section 6.11 Fixture Filing. From the date of its recording, this Shore
Mortgage shall be effective as a financing statement filed as a fixture filing
with respect to the collateral described in the Granting Clauses hereof which
are fixtures within the meaning of the Iowa Uniform Commercial Code, and for
this purpose the name and address of the Debtor is the name and address of the
Company, as set out in Section 6.3 herein, and the name and address of the
Secured Party is the name and address of Lender, as set out in Section 6.3
hereof. Pursuant to the provisions of Section 554.9403 subparagraph 6 of the
Iowa Code, such fixture filing remains in effect until this Shore Mortgage is
released or satisfied of record or its effectiveness otherwise terminates as to
the Land.
Section 6.12 Defined Terms. All capitalized terms used in this Shore
Mortgage and not defined herein shall have the meanings ascribed to them in the
Loan Agreement.
Section 6.13 Discharge of Lien. In accordance with the Loan Agreement and
upon the observance and performance of each and every covenant and condition set
forth herein and in the Loan Agreement, then and in that case all property,
rights and interest hereby conveyed or assigned or pledged shall revert to the
Company, and the estate, right, title and interest of Lender therein shall
thereupon cease, terminate and become void; and this Shore Mortgage, and the
covenants of the Company contained herein, shall be discharged and Lender in
such case on demand of the Company and at the Company's cost and expense, shall
execute and deliver to the Company a proper instrument or proper instruments
acknowledging the satisfaction and termination of this Shore Mortgage, and shall
convey, assign and transfer or cause to be conveyed, assigned or transferred,
and shall deliver or cause to be delivered, to the Mortgagor, all property,
including money, then held by Lender hereunder.
Section 6.14 Conflicts with Loan Agreement. In the event of a conflict
between the provisions of the security agreement contained in the Loan Agreement
and the provisions of this Shore Mortgage, the Shore Mortgage shall govern in
all matters relating to the validity and enforceability of the Lien created
hereby on the Real Property, the Improvements, the Fixtures, the Leases and the
Rents and (except as expressly set forth to the contrary herein or in the
security agreement contained in the Loan Agreement), the security agreement in
the Loan Agreement shall govern in all other respects.
Section 6.15 Shore Mortgage Absolute. The obligations of the Company under
this Shore Mortgage are independent of the obligations of Company under the
other Transaction Documents, and a separate action or actions may be brought and
prosecuted against Company to enforce this Shore Mortgage, irrespective of
whether any action is brought against Company
28
under such other Transaction Documents. All rights of Lender and the mortgage,
assignment and security interest hereunder, and all obligations of Company
hereunder, shall be absolute and unconditional, irrespective of:
(a) any lack of validity or enforceability of any other Transaction
Document or any other agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the obligations of Company under the other
Transaction Documents or any other amendment or waiver of or any consent to
any departure from the other Transaction Documents, including, without
limitation, any increase in such obligations resulting from the extension
of additional credit to the Company or otherwise;
(c) any taking, exchange, release or non-perfection of any other
collateral, or any taking, release or amendment or waiver of or consent to
departure from any guaranty, for all or any other of the obligations of the
Company under the other Transaction Documents;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the obligations of Company under the other Transaction
Documents, or any manner of sale or other disposition of any collateral for
all or any of such obligations or any other assets of the Company;
(e) any change, restructuring or termination of the corporate
restructure or existence of the Company; or
(f) any other circumstance that might otherwise constitute a defense
available to, or a discharge of, the Company or a third party the Company
of a security interest or mortgage.
Section 6.16 Interaction with Loan Agreement. All terms, covenants,
conditions, provisions and requirements of the Loan Agreement are incorporated
by reference in this Shore Mortgage. Notwithstanding any other provision of this
Shore Mortgage, the terms and provisions of this Shore Mortgage shall be subject
and subordinate to the terms of the Loan Agreement. To the extent that the Loan
Agreement provides the Company with a particular cure or notice period, or
establishes any limitations or conditions on Lender's actions with regard to a
particular set of facts, the Company shall be entitled to the same cure periods
and notice periods, and Lender shall be subject to the same limitations and
conditions, under this Shore Mortgage, as under the Loan Agreement, in place of
the cure periods, notice periods, limitations and conditions provided for under
this Shore Mortgage; provided, however, that such cure periods, notice periods,
limitations and conditions shall not be cumulative as between the Loan Agreement
and this Shore Mortgage. In the event of any conflict or inconsistency between
the provisions of this Shore Mortgage and those of the Loan Agreement,
including, without limitation, any conflicts or inconsistencies in any
definitions herein or therein, the provisions or definitions of the Loan
Agreement shall govern.
29
Section 6.17 Indemnity. The Company hereby agrees to indemnify, defend and
hold Lender (and its directors, officers, agents and employees) harmless from
and against any and all loss, liability, damage, claim, judgment or expense
(including reasonable attorneys' fees and expenses, bond expenses, printing and
automated document preparation and retention expenses and other ordinary
litigation expenses) incurred by it (or such director, officer, agent or
employee) in connection with the acceptance or administration of Lender's duties
under this Shore Mortgage, any action or proceeding to foreclose this Shore
Mortgage or in or to which Lender may be made a party due to the existence of
this Shore Mortgage or the other Transaction Documents or to which action or
proceeding Lender may become a party for the purpose of protecting the lien of
this Shore Mortgage. All sums paid by Lender to prosecute or defend the rights
herein set forth shall be deemed a part of the Secured Obligations and shall be
paid by the Company to Lender within ten (10) days after written demand, and if
not paid within that period, shall accrue interest from and including the date
of disbursement or advance by Lender to and including the date of payment by the
Company at the Additional Interest Rate.
Section 6.18 Parcel D. The Company agrees that it (a) will deliver to
Lender within thirty days of the date of this Shore Mortgage a survey of Parcel
D, described as Lot 1 in Adams Company's 3rd Addition in the City of Dubuque,
Iowa on Exhibit A hereto, which survey shall be certified to Lender and its
title insurance company showing the legal description thereof and the absence of
any encroachments, easements or other matters that would interfere with the use
of such Parcel D, and (b) will cause said Parcel D to be included in the title
insurance policy for the parcels described in Exhibit A or will cause a separate
policy to be issued for Parcel D which is in a form substantially equivalent to
the policy insuring the parcels in Exhibit A.
30
IN WITNESS WHEREOF, the Company has executed this Shore Mortgage as of
the date first written above.
IMPORTANT: READ BEFORE SIGNING. THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR
ORAL PROMISES NOT CONTAINED IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.
YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
THIS NOTICE APPLIES TO ALL AGREEMENTS ENTERED INTO TO WHICH THE COMPANY AND
LENDER ARE PARTIES.
PENINSULA GAMING COMPANY, LLC
By: /s/ M. Brent Stevens
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Attest:
/s/ Natalie Schramm
- --------------------------------
(No Seal)
S-1
STATE OF )
) ss:
COUNTY OF )
On this _________ day of _____________________, A.D., 2001 before me, a
Notary Public in and for the State of __________________, personally appeared
___________________, to me personally known, who being by me duly sworn did say
that the person is (a) (the) ______________________ of Peninsula Gaming Company,
LLC, a Delaware limited liability company, executing the foregoing instrument,
that the instrument was signed on behalf of the said limited liability company
by authority of the limited liability company and the said
__________________________ acknowledged the execution of said instrument to be
the voluntary act and deed of said limited liability company by it voluntarily
executed.
_________________________________________
Notary Public in the State of ___________
S-2
EXHIBIT A
Legal Description of Fee Simple Interests
PARCEL A
Lot 3 of Adams Company's 2nd Addition in the City of Dubuque, Dubuque
County, Iowa, according to the recorded plat thereof.
PARCEL B
Lots 7 and 8 of Ice Harbor Development, in the City of Dubuque, Dubuque
County, Iowa, according to the recorded plat thereof. Together with:
(a) A perpetual, non-exclusive fifteen (15) foot wide maintenance easement
over and across Lot 6 in Ice Harbor Development for maintenance of
Lots 7 and 8 in Ice Harbor Development.
(b) A perpetual, non-exclusive easement for ingress and egress to and from
Lots 7 and 8 in Ice Harbor Development over and across the
"Ingress-Egress Easement" abutting the Southern terminus of Bell
Street.
(c) A perpetual, non-exclusive easement for ingress and egress to Lots 7
and 8 in Ice Harbor Development over and across Lots 6 and 10 in Ice
Harbor Development, all as shown on the final plat of Ice Harbor
Development, in the City of Dubuque, Iowa, filed as Instrument No.
6167-95 in the office of the Dubuque County Recorder.
PARCEL C
Lot 1 of Adams Company's 1st Addition in the City of Dubuque, Dubuque
County, Iowa, according to the recorded plat thereof.
PARCEL D
Lot 1 in Adams Company's 3rd Addition in the City of Dubuque, Dubuque
County, Iowa, according to the recorded plat thereof.
A-1
EXHIBIT B
The Leases and the Real Property
Subject to Leasehold Interests
Lots 5 and 6 of Ice Harbor Development in the City of Dubuque, Iowa.
B-1